Defense lawyer asks Guantánamo judge to expand the female guard no-touch rule

Army guards, mostly men, but also a woman, attend an awards ceremony in the Detention Center Zone at the U.S. Navy base at Guantánamo Bay, Cuba, on Tuesday, Nov. 4, 2014, in this photo approved for release by the U.S. military.
Army guards, mostly men, but also a woman, attend an awards ceremony in the Detention Center Zone at the U.S. Navy base at Guantánamo Bay, Cuba, on Tuesday, Nov. 4, 2014, in this photo approved for release by the U.S. military. MIAMI HERALD STAFF

A Marine defense lawyer asked a military judge Wednesday to expand his no-female-guard touching order beyond legal meetings to include an Iraqi captive’s medical, Red Cross and recreation yard visits at the prison’s clandestine lockup for former CIA captives, Camp 7.

To which the commander of the special prison replied in anonymous sworn war court testimony that such an order would endanger his elite guard staff and make it “operationally ineffective ... combat ineffective.”

The defense lawyer, Marine Lt. Col. Thomas Jasper, raised the stakes at a pretrial hearing Wednesday for Abd al Hadi al Iraqi, who’s on trial for alleged war crimes as commander of al-Qaida’s army after the 2001 U.S. invasion of Afghanistan.

Hadi says “it is a sin” to be touched by a woman other than close family, according to his Islamic faith. His U.S. military lawyers are invoking the U.S. Supreme Court’s 2014 Hobby Lobby religious accommodation ruling in seeking a wider order blocking female guards from touching him.

Now, unnamed female guards at Camp 7 have filed a gender discrimination complaint against the judge, Navy Capt. J.K. Waits, for forbidding them to touch the Muslim man during transfers to and from the war court and meetings with his lawyers. They’ve done the same against the 9/11 case judge who followed with a similar order.

Part of the problem is that, although there are more than 2,000 troops, civilians and contractors assigned to the detention center — which now holds 122 detainees — Camp 7 is a separate, secret entity with a subset of the staff trained for duty in its elite unit, Task Force Platinum.

Women have done escort duty, clutching a shackled captive by the arm or shoulder, in the less secretive lockups for more run-of-the-mill detainees.

But testimony Wednesday showed that commanders had previously treated differently the lockup holding the alleged 9/11 mastermind Khalid Sheik Mohammed and 14 other men who were held for years by the CIA. The controversy erupted in October after a lieutenant colonel with the Massachusetts National Guard, a woman with 32 years military police experience, took charge of Camp 7 and had two of her female sergeants trained to do escort duty.

She said in Skype-like testimony from Hawaii that she found skilled women of the Massachusetts Guard were more willing to be mobilized to Guantánamo than some similarly skilled men.

Until then, the Army had only assigned male guards to be Camp 7 escorts, just like it only assigns men to strip search and pat detainee genitals and to watch male captives undress and shower.

A female soldier whose escort Hadi rebuffed in October — an Army sergeant from the National Guard who’s served seven years and works as a police officer in civilian life — said, since the judge’s no-touch order, her work as Escort Team Leader had become a joke.

“For most of my seven years, I have been treated as a soldier and not based on my sex,” she said, invoking tours in Iraq and Afghanistan. “Once I got here, it made me feel like less of a soldier, that I couldn't do my job because I was a female.”

The sergeant said she understood a U.S. military policy that prevented females from searching the men and supervising their showers “to assist the person to feel more comfortable,” but noted those rules aren’t for religious accommodation.

“Obviously we’re not here to humiliate detainees,” said her current commander, a man who also testified anonymously and removed his rank from his battle dress uniform.

Waits issued the no-touch rule for legal meetings in November. Since then, two things happened, according to testimony:

Morale dipped at Task Force Platinum with a sense of disunity between the men and women soldiers. The prison twice more assigned a woman to handle Hadi, to take him to medical appointments not covered by Judge Waits’ restraining order. Hadi refused and was subjected to a tackle-and-shackle technique called a Force Cell Extraction.

The current Camp 7 commander said, back home, he put out a gender neutral call for military police with law enforcement and corrections officers’ backgrounds who had or could get Top Secret clearances.

But the female sergeant whom Hadi asked not to touch him Oct. 8 testified that she twice tried to sign up for the Guantánamo deployment and was told it was for men only.

They let her sign up on her third try — a month before they deployed.

On Wednesday, prosecutors gave the judge a letter that Camp 7 guards intercepted from the alleged 9/11 mastermind Mohammed that suggested there had been a female guard showdown four years earlier that was resolved with the captives being allowed to ask for a male guard to touch them instead.

The document, apparently intended for Hadi, was styled as Mohammed’s recommendations to the Iraqis of what his U.S. military lawyers should ask Hadi in war court testimony. Jasper said Wednesday that his client never saw the Mohammed note, and would not testify on the topic this week.

Instead, Jasper submitted a sworn statement from Hadi calling it “a sin” in “my Islamic faith” to be touched by a woman other than a close relative.

Hadi also said he had not knowingly been touched by a female guard before the Oct. 8 showdown, something the anonymous sergeant disputed.

She said she had grabbed his bodycuff, a restraint, and put one hand on his right arm while male guards were walking him to a van for transport to meet Jasper.

The Marine defense lawyer asked the soldier in a battle-dress uniform whether “it’s possible he wouldn't recognize you as a female.”

Female soldier: “I think anything's possible. I think I look like a female.”

Jasper: “You do.”

The defense lawyers also gave the judge a written statement from a Canadian law professor, a Muslim man, about unwanted touching by women in Islam. It was not available on the court docket Wednesday.

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